STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

BRENDA L YOUNG, Employee

UNITED PARCEL SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05401843OS


On June 22, 2005, the Department of Workforce Development issued an initial determination which held that the employee's discharge had been for misconduct connected with her employment. The employee filed a timely request for hearing on the adverse determination, and hearing was held on July 26, 2005 in Oshkosh, Wisconsin before a department administrative law judge. On July 28, 2005, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked more than 18 years as a package delivery driver for the employer, a parcel delivery service. The employer discharged her on June 7, 2005 (week 24) for having signed herself for a delivery that required the customer's signature, and the issue is whether this failure was misconduct for unemployment insurance purposes. The commission concludes that it was not, and so reverses the appeal tribunal decision.

On June 6, 2005, the employee was to deliver a package to a customer that required a signature for the delivery. The customer was not home when the employee went to deliver the package so the employee signed for the package herself and left it on the customer's front porch. Before doing so, the employee stopped by another address the customer often had the employee leave packages at, but there was no one home there, either. The customer called later in the day to complain about the package being left without the customer signing for it. The employer investigated the matter and discovered a few other signatures that looked like the employee had signed. The employer had hearsay evidence to the effect that the employee had signed for those packages as well; the employee had hearsay evidence to the effect that those customers had informally authorized her to do so. There was a dispute as to whether the employee lied about the latter group of signatures, during the employer's interview of the employee following the original customer's complaint call; the evidence overall is insufficient to establish that the employee in fact did so. In any event, the employer discharged the employee on June 7.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. There is no question but that the employee's signing for package herself was a violation of the employer's rules prohibiting such, and there also is no question but that the employee knowingly violated that prohibition. Given the history of the employee's deliveries to the customer in question, however, the employee's failure is better characterized as an isolated instance of poor judgment than as the substantial disregard of the employer's interests which is misconduct for unemployment insurance purposes. The employee had been delivering packages to the customer on occasion for the last several years and on previous occasions the customer had authorized the employee (by signing a delivery authorization slip) to either sign the delivery confirmation herself or take the package to another address. In addition, the employee knew that the package in question was from the customer's son and reasoned, albeit wrongly, that the customer would be happy to have received the package without having signed for it. These factors mitigate the employee's failure and bring it within the isolated instance of poor judgment category.

The commission therefore finds that, in week 24 of 2005, the employee was discharged but not for misconduct connected with her work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 24 of 2005, if she is otherwise qualified.

Dated and mailed October 13, 2005
youngbr . urr : 105 : 1  MC 675

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission has concluded that the failures by the employee proven by competent evidence do not meet the legal definition of misconduct.

 

cc: United Parcel Service, Inc. (Baraboo, Wisconsin)


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uploaded 2005/10/21